Creators' Rights Alliance - Between a rock and a hard place - G: Proposals for reform
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Enforcement

(a) Tribunals

One problem authors face is the cost of enforcing rights and, in particular, the difficulties they face obtaining appropriate access to justice. If the rights that creators can retain are to be worth having, they must be readily enforceable. (In Germany, for example, access to the legal system is comparatively cheap and people will litigate over as little as £10.) In this respect it would be worth considering whether a tribunal, or some kind of informal arbitration mechanism, should be established and empowered to interpret certain types of copyright contracts, and award equitable remuneration.

One obvious candidate in the UK is the Copyright Tribunal, which was initially conceived as a mechanism for determining complaints brought by licensees, actual or potential, concerning collective licensing schemes and collecting bodies and societies (such as the PRS). The idea was to provide an arbiter so as to prevent abuse of monopolies by the bodies or right-holders. The Tribunal is composed of a chairman, two deputies, between two and eight ordinary members, normally sits in panels of three and works in accordance with rules which encourage the use of written procedures.[1] The jurisdiction of the Copyright Tribunal has been expanded so that it also has various other roles, including determining the terms of compulsory licences, and granting consent for reproduction on behalf of performers in cases where they cannot be found. Most importantly, it has also been granted jurisdiction over questions of remuneration to those authors, directors and performers who have assigned their rental rights to producers of films or sound recordings, as well as over claims by performers for equitable remuneration for the broadcast or public performance of sound recordings.[2]

While the CRA does not anticipate that these proposals will result in a great deal of litigation, we are doubtful that the present structure and procedures of the Copyright Tribunal are appropriate for the job we propose. In particular, we would envisage a tribunal that was less formal, and one that would encourage and interpret the oral and written submissions of individual creators (whether legally assisted or not). Ideally, the tribunal would be able to reach swift decisions and be able to enforce the claims of creators by interim relief (particularly in moral rights cases). The CRA considers that such an arrangement could be achieved by adding an extra tier to the Copyright Tribunal structure that might operate with much less formality and from which appeals, if necessary, could be made to the Tribunal itself.

(b) Penalties.

Another way in which the position of authors could be strengthened is through the reform of the remedies that are currently available for infringement of moral rights and copyright. As the law stands, authors finding their works have been abused may proceed to the courts, only to find that their successful action results in a derisory penalty. This is sometimes because the courts have difficulty evaluating damage (for example to an author’s moral rights). In other cases awards of damages based only on the market royalty rate can act as a significant disincentive to the payment of royalties by exploiters. Exploiters who act honestly in paying the market rate may find themselves at a competitive disadvantage to those who choose to pay little or no royalties and await legal actions on the part of aggrieved creators.

Although the current law contains an action for “additional damages”[3] (according to which a court may consider all the circumstances, particularly the flagrancy of the infringement and any benefit accruing to the defendant, and award such additional damages as the justice of the case requires) this is currently surrounded by uncertainty as to the exact purpose of the remedy.[4]  However, it has been held that their award is the exception rather than the rule, and a claimant needs to show special circumstances that would justify the imposition of an additional financial penalty.[5] In the field of moral rights, the remedies available are even weaker.

In contrast, many other legal systems provide for penalties as well as damages. In Austria, for example, under Article 87(3) of the Austrian Copyright Act, the claimant can request that damages be doubled where infringements are “culpable”.[6] In Greek law, damages are specifically required to be not less than double the royalties normally paid for the use at issue.[7] Some legal systems make moral rights infringements criminal.

The CRA believes that the penalties for infringement of moral rights should be increased sufficiently so as to induce businesses to seek permissions in advance: they should be at least as strong as those attaching to the infringement of economic rights. We therefore call on the UK Government to:

  • Repeal section 103 and replace it with provisions equivalent to section 96 and 97 of the CDPA (remedies for infringement of copyright, and provisions as to damages);
  • Extend the provisions on damages so as to allow a creator to obtain additional damages for distress, anxiety and mental suffering;
  • Implement express provisions empowering a tribunal to order the destruction of any works which infringe an author’s right of integrity.;
  • Finally, amend section 107, so that the infringing acts specified in section 83 of the CDPA, which cover knowing infringements of the integrity right in commercial circumstances, also attract criminal liability.


[1] CDPA Part I, Chap. VIII.

[2] CDPA ss. 93B-C, 191G-H, 182D.

[3] CDPA s. 97(2).

[4] Redrow Homes v Bett Bros [1998] 1 All ER 385, 391 per Lord Jauncey (no need to decide whether punitive or compensatory); 393 per Lord Clyde (probably aggravated). C. Michalos, ‘Copyright and Punishment: The Nature of Additional Damages’ [2000] EIPR 470.

[5] Ravenscroft v Herbert [1980] RPC 193, 208 (flagrancy implies the existence of scandalous conduct, deceit and such like; it includes deliberate and calculated infringement).

[6] Article 87(3) of the Austrian Copyright Act. In Germany, a 100% surcharge is added where rights are enforced by GEMA because of the cost of policing restaurants, hotels, bars etc: no surcharge is available for reproductions: Film Music, Federal Supreme Court 22 Jan 1986 (1988) 19 International Review of Industrial Property and Copyright Law 406. In France, an author can claim, in addition to remuneration owed for use of its work, a part of the profits obtained by the infringer. For a discussion in Switzerland, where penal damages are not available, see Increased Damages, Federal Supreme Court, 10 October 1996, (1998) 29(7) International Review Of Industrial Property and Copyright Law 830.

[7]  Greece Art. 65(2).

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